Citation Nr: 0732600
Decision Date: 10/17/07 Archive Date: 10/26/07
DOCKET NO. 06-08 265 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Portland,
Oregon
THE ISSUE
Entitlement to service connection for follicular lymphoma, to
include as secondary to radiation exposure or chemical
exposure.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
B. Morton, Associate Counsel
INTRODUCTION
The veteran served on active duty from November 1956 to
November 1960.
This matter is before the Board of Veterans' Appeals (Board)
from a May 2004 decision by the Department of Veterans
Affairs (VA) Regional Office (RO) in Portland, Oregon, which
denied service connection for follicular lymphoma, to include
as secondary to radiation exposure or chemical exposure. The
RO issued a notice of the decision in June 2004, and the
veteran timely filed a Notice of Disagreement (NOD) in August
2004. Subsequently, in February 2006 the RO provided a
Statement of the Case (SOC), and thereafter, in March 2006,
the veteran timely filed a substantive appeal. The RO
supplied a Supplemental Statement of the Case (SSOC) in
November 2006.
The veteran requested a Board hearing on this matter, which
was held in May 2007 where the veteran presented as a witness
before the undersigned veteran's law judge. A transcript of
the hearing is of record.
The Board notes that at his May 2007 Travel Board Hearing,
the veteran raised two additional issues, namely: (1)
entitlement to an initial compensable rating for bilateral
hearing loss, and (2) entitlement to an increased rating for
a low back disability, currently evaluated at 20 percent.
The Board comments that the RO issued a decision and notice
of decision in January 2006, which granted service connection
for bilateral hearing loss, assessing it at zero percent, and
denied the increased rating claim for the low back disorder.
Thereafter, in February 2006, the veteran timely submitted an
NOD, and subsequently, the RO provided an SOC in December
2006.
The record reflects, however, that the veteran has not
submitted a timely substantive appeal (VA Form 9 or other
correspondence) as to these two issues in accordance with 38
C.F.R. §§ 20.202 and 20.302(b). See Matthews v. Principi, 19
Vet. App. 23, 26-27 (2005); Huston v. Principi, 18 Vet. App.
395, 399 (2004). As provided by 38 C.F.R. § 20.302(b), the
veteran had "60 days from the date the [RO] mail[ed] the
Statement of the Case to the [veteran], or . . . the
remainder of the 1-year period from the date of mailing of
the notification of the determination being appealed,
whichever period end[ed] later" within which to submit a
substantive appeal. 38 C.F.R. § 20.302(b); accord, Matthews,
supra; Huston, supra. In the instant case, this would
require the veteran to have submitted a substantive appeal by
January 2007 (one year after the January 2006 notice of
decision) or by February 2007 (60 days after the issuance of
the December 2006 SOC). As demonstrated by the record, the
veteran met neither date.
The Board also determines that it may not construe the
veteran's May 2007 Travel Board hearing testimony or his
accredited representative's March 15, 2007 Appeal Pre-
Certification Review Form (in lieu of VA Form 646) as the
functional equivalent of such an appeal, as the dates of
these items fall outside of the express time period allotted
for the filing of such appeals. 38 C.F.R. § 20.302(b);
accord Matthews, 19 Vet. App. at 26-27. Moreover, principles
of equitable tolling do not apply, as the veteran has never
claimed to have misfiled a Form 9, but appears simply to have
failed to act diligently in the appellate pursuit of these
claims. See e.g., Hunt v. Nicholson, 20 Vet. App. 519, 524-
25(2006) (holding that equitable tolling applies in the
context of untimely filed substantive appeals provided that
"(1) the claimant must have exercised due diligence in
pursuing his legal rights; (2) the misfiled document must
reveal a clear intention by the claimant to seek further
review; and (3) the misfiled document must but VA on notice
of the claimant's intention"). However, because the
veteran, by way of his Travel Board testimony, has raised the
two issues discussed above, the Board refers these matters to
the RO for further action, which will include adjudication of
the claims after providing proper Veterans Claims Assistance
Act (VCAA) notice as well as considering whether fresh VA
medical examinations are necessary to determine the claims.
Additionally, the veteran submitted a request to advance his
case on the Board's docket pursuant to 38 C.F.R. § 20.900(c),
which was granted in October 2007.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the veteran
if further action is required on his part.
REMAND
The Board finds that additional development is warranted to
address the merits of the veteran's claim. 38 C.F.R. § 19.9
(2007). Specifically, the veteran's private physician, Dr.
Craig R. Nichols, who has treated the veteran for his
follicular lymphoma, conveyed in a September 2003
correspondence that "[t]his condition is possibly due to . .
. chemicals." (Emphasis added). He did not, however,
provide any rationale for this conclusion. The Board further
questions whether his determination that the current disease
is "possibly" related to the veteran's in-service chemical
exposure suffices to satisfy the legal standards for service
connection enunciated in 38 C.F.R. §§ 3.303 and 3.304. As
such, additional development must occur.
Accordingly, the case is remanded for the following action:
1. The AMC/RO must review the record and
ensure compliance with all notice and
assistance requirements set forth in the
Veterans Claims Assistance Act of 2000
(VCAA). See 38 U.S.C.A. §§ 5102, 5103,
5103A, 5107; 38 C.F.R. § 3.159 (2005).
Notice consistent with 38 U.S.C.A
§ 5103(a) and 38 C.F.R. § 3.159(b)(1)
with respect to the claims must:
(a) inform the claimant about the
information and evidence not of record
that is necessary to substantiate the
claim for the benefit sought; (b) inform
the claimant about the information and
evidence that VA will seek to provide;
(c) inform the claimant about the
information and evidence the claimant is
expected to provide; and (d) request that
the claimant provide any evidence in the
claimant's possession that pertains to
the claim.
The AMC/RO should provide the veteran
with VCAA notice under 38 U.S.C.A.
§ 5103(a) and 38 C.F.R. § 3.159(b), that
includes an explanation as to the
information or evidence needed to
establish ratings and effective dates for
the benefit sought as outlined by the
Court of Appeals for Veterans Claims in
Dingess v. Nicholson, 19 Vet. App. 473,
484, 486 (2006).
2. After obtaining up-to-date
authorization and consent for release of
medical information from the veteran, the
AMC/RO must request all medical treatment
records from the veteran's private
physician, Dr. Craig R. Nichols, Division
Chief, Hematology/Oncology and Associate
Director, OHSU Cancer Institute.
The AMC/RO likewise must ask Dr. Nichols
to clarify and/or elaborate on his
September 2003 statement that the
veteran's follicular lymphoma "is
possibly due to . . . chemicals." Such
clarification must include an answer to
the following question:
Is it at least as likely as not (50
percent or greater probability) that
the veteran's in-service chemical
exposure caused or aggravated his
current follicular lymphoma?
It is emphasized that the term "as
likely as not" does not mean within the
realm of possibility. Rather, it means
that the weight of medical evidence both
for and against a conclusion is so evenly
divided that it is medically sound to
find in favor of causation as to find
against causation. More likely and as
likely support the contended causal
relationship; less likely weighs against
the claim.
The physician is also requested to
provide a rationale for the opinion
expressed. The physician is advised that
if a conclusion cannot be reached without
resort to speculation, he should so
indicate in the examination report.
3. Then, after completion of any other
notice or development indicated by the
state of the record, with consideration
of all evidence added to the record
subsequent to the last SSOC, the AMC/RO
must readjudicate the veteran's claim.
If the claim remains denied, the AMC/RO
should issue an appropriate SSOC and
provide an opportunity to respond.
The veteran has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369, 370 (1999) (per
curiam).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112.
____________________________________________
R. F. WILLIAMS
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal. 38
C.F.R. § 20.1100(b) (2006).